How To Bring More Transparency To U.S. Surveillance Programs

There is no shortage of divergent views about the once secret NSA surveillance programs former contractor Edward Snowden allegedly leaked. But there is one point on which even the fiercest critics and staunchest defenders of national security communications surveillance seem to agree: more transparency from the U.S. government is required.

Whether one views the NSA intelligence programs overseen by the Foreign Intelligence Surveillance Court as a shocking privacy breach, business-as-usual for a signal intelligence agency, or a positive example of intelligence oversight, it’s increasingly clear that the public lacks the basic information needed to objectively evaluate the costs and benefits of the status quo.

With more disclosure, there is an opportunity to assess the human rights risks that may arise from the technological advances in the era of big data. In turn, we can determine through democratic processes the appropriate legal safeguards that should apply to surveillance, and develop international norms to protect the right to privacy across borders.

This is not just about the United States. All governments around the world engage in communications surveillance, and U.N. Special Rapporteur on Freedom of Expression Frank La Rue recently submitted a report to the Human Rights Council cataloguing an array of challenges from Australia to Zimbabwe. But for now, the U.S. sits in the global hot seat on this particular issue.

Transparency is a necessary if not sufficient first step. And from Congress to grassroots coalitions, a growing bipartisan chorus of voices is pushing for disclosure, with Tea Party and Occupy Wall Street groups finding a rare point of agreement.

Technology companies and human rights organizations are joining the call. The Global Network Initiative (GNI) brings together companies including Facebook, Google, Microsoft, and Yahoo! with civil society, investors, and academics to protect and advance freedom of expression online. GNI’s company members are bound by nondisclosure agreements imposed on companies who receive FISA orders and national security letters, which effectively and perpetually prohibit companies from reporting even in general terms, after the fact, on the national security demands they receive.

It’s time for all branches of the U.S. government to get proactive about transparency and foster a public debate on surveillance measures that would demonstrate the right way for democracies to handle this sensitive and difficult topic. GNI has identified three specific next steps in this regard: First, create a declassification process for significant legal opinions to inform public debate and enable oversight of government actions. Second, revise the gag provisions and enable companies to be transparent regarding their efforts to protect privacy and free expression. Finally, the U.S. government and like-minded countries that have made a commitment to protecting rights online should lead by example and issue their own reports on surveillance requests. Although the U.S. government has just released the latest U.S. Wiretap report, these public reports capture only a fraction of the communications surveillance currently taking place.

Taken together, these are a few steps in the right direction on transparency, but they offer a chance for the U.S. to show the rest of the world how the government can work together with the private sector and civil society to find ways to protect both national security and the right to privacy.